(WSJ) Does using a fake name when you sign up for a cellphone plan mean the government can get information from your phone without a warrant?
That’s one argument the Department of Justice is making in an Arizona case – that using a false name is fraud and means you don’t have a reasonable expectation of privacy.
Such a stance might raise questions about the widespread practice of using pseudonyms to sign up for services online. But legal experts said it’s unlikely a court would take the argument that far.
The case, which the Journal first covered in an article last year, involves the use of a cellphone-tracking device called a stingray to find a mobile broadband card that the government says was being used to file fraudulent tax returns.
The government conceded in the case that the use of the stingray was intrusive enough qualify as a search under the Fourth Amendment, which protects against unreasonable searches and seizures. But in a court filing on Jan. 27, the government argues that the defendant, Daniel David Rigmaiden, doesn’t have standing to bring a Fourth Amendment claim because the broadband card, service and computer were purchased under false names and the apartment was rented using the name of a dead person and a fake ID.
Courts recently have found that a warrantless search is OK if the person used fraud to get the thing being searched, said Susan Freiwald, a professor at the University of San Francisco School of Law. In one example, the defendant had bought a computer with a stolen credit card and the person who actually owned the card consented to the search. In another, the defendant was receiving mail addressed to an alias he used only as part of a fraud.
But other cases have found that people still have a reasonable expectation of privacy – and thus can’t have their property searched without a warrant – even if they are using an alias.
“It’s not against the law to use a fake name,” said Adam Candeub, director of the Intellectual Property, Information and Communications Law Program at Michigan State University. The use of a fake ID and signing of a lease might be a different matter, though. “It can be fraudulent if you are entering into a contract under a fake name, but if it is a simple retail transaction the law is not clear,” he said.
Ms. Freiwald said that although prosecutors have argued repeatedly that using an alias diminishes a person’s Fourth Amendment rights, “it would be too large an encroachment on both privacy rights and the rights of free speech if the mere use of a pseudonym were enough to deprive someone” of Fourth Amendment protections.
they do have a point. if the property can not be proven to be owned by the alleged then how is it unlawful search and seizure… and another problem would be what if a mistake is made? It would seem that the loophole the FEDS think they have could really self destruct on them.